ALBANY, N.Y., DEC. 27 -- A couple who sued Omni magazine because a photograph of their family was used to illustrate an article about coffee's effect on fertility had their case thrown out today by New York's highest court.
In a unanimous decision, the New York Court of Appeals rejected the couple's argument that a photo of them and their six children had "no real relationship" to the article.
Joseph and Ida Finger and their children were pictured beside an article titled "Caffeine and Fast Sperm" in Omni's June 1988 issue. The article discussed medical research indicating that in vitro fertilization rates may be enhanced by exposing sperm to high concentrations of caffeine.
"Want a big family?" the photograph's caption read. "Maybe your sperm needs a cup of java in the morning. Tests reveal that caffeine-spritzed sperm swim faster, which may increase the chances for in vitro fertilization."
Neither the caption nor the article mentioned the Fingers' names or indicated that the couple had used in vitro fertilization or caffeine for help in producing their family, according to the court.
The couple, who conceived their children naturally, had been photographed for an article in a Catholic publication, said their lawyer, Paul Gruner. They were unaware that their picture had been given by a photo service to Omni until a friend showed Ida Finger the magazine in a supermarket, he said.
"When it became known in a small community, the children were the subject of some ridicule," Gruner said.
The Fingers of Saugerties, a community of about 4,000 people in Upstate New York, argued that their civil rights were violated because their picture was used for an article that had nothing to do with them. State law prohibits the use of photographs without consent for purposes of advertising or trade.
But Court of Appeals Judge Fritz Alexander, writing for the court's seven judges, noted that the courts have consistently refused to apply the civil rights law to news articles, limiting these interpretations to advertising.
"Questions of 'newsworthiness' are better left to reasonable editorial judgment and discretion," he wrote.
"Judicial intervention should occur only in those instances where there is 'no real relationship' between a photograph and an article or where the article is an 'advertisement in disguise.' "
The judge said there's clearly a "real relationship" between the fertility theme and a picture of six healthy, attractive children who all bear a striking resemblance to their parents.
Laura Handman, a lawyer for Omni, said any other decision by the top court in New York, home to much of the nation's magazine industry, would have greatly reduced editorial freedom.
But Gruner said the decision gives the press too much freedom to use pictures of people with articles that have nothing to do with them.